In an opinion piece published by the Mail & Guardian on August 19, Sanya Samtani makes an argument in support of the Copyright Amendment Bill centred on access to educational materials as the “key to decolonising education and enabling a practice of decolonial scholarship.”
Ironically, the Copyright Amendment Bill is a guaranteed path to the recolonisation of the education system.
The project of decolonising education should look at both who has access to educational materials, and which materials they have access to. We should aim not only to ensure access for all South Africans to educational materials, but also to ensure access to local knowledge produced by local creators on just terms for both producers and users.
The Copyright Amendment Bill is fundamentally unjust. The financial value of a creator’s originality and creativity will be stolen from her by big global tech companies. Under this new law, our writers will stop writing books for educational purposes. Our singers will stop singing. Our artists will stop drawing.
One of the unintended consequences of the Bill will be the dominance of foreign content in our schools. Our children will be forced to learn content produced in other countries that they cannot relate to. Far from decolonising the curriculum, the Bill will recolonise South African education.
The economic consequences won’t be limited to creatives not being paid for their content. Poor, mainly black South Africans will bear the brunt of the widespread job losses resulting from the enactment of the Bill. A socioeconomic impact assessment conducted by PricewaterhouseCoopers (PwC) found that 1 250 publishing jobs will be lost if the Bill is signed into law.
In the Bill’s current form, the winners will be the big global tech companies such as Google and Wikipedia. The losers: young, black South African creatives. This is because the Copyright Amendment Bill will give global tech companies unprecedented rights to exploit local copyrighted works without fair, or even any, payment. Instead, they will offer exposure or host spaces on platforms where massive advertising revenue will be generated for that tech giant. Meanwhile, the individual creative author of the song, book or artwork will derive little to no compensation, all because of the Bill’s overly broad exceptions disguised as “fair use”.
The way the Bill was rushed through Parliament is evidence of the intensity of the lobbying of these global behemoths. Their outsized influence on the department of trade and industry has meant that the Bill allows copying (or “fair use”) of local creative material but with little to no objective safeguards.
The fair use provisions in the Bill are imported from US law. If the Bill had also incorporated statutory damages, as the US copyright framework does, our creatives would stand a chance against this exploitation. Instead, when the fair use allowance is breached and the creator needs to enforce remaining protections, they face significant costs and time delays in court. This has been the case in countries that have incorporated fair use.
We cannot allow our culture and local content to be given away free to companies abroad. Nor should we enact measures that will disincentivise the production of local content and cultural works. This is why we need to stop the Copyright Amendment Bill before it is signed into law.
We need to put pressure on the one man who can stop it: President Cyril Ramaphosa. He alone has the power to protect our creative sector and reject the Bill and send it back to Parliament.
And the president has good reason to refer the Bill back to the National Assembly. Fundamentally, the Bill in its current form is wholly unconstitutional on procedural and substantive grounds.
Procedurally, the Bill is unconstitutional because public consultation was woefully insufficient. Also, the Bill — which affects the whole country, especially provincial functions —was only half-aired in Parliament. It should have been considered by the provinces, because it has a material impact on culture and trade. Instead, it went through only the National Assembly in a rushed, flawed process.
More importantly, on substantive grounds, the Bill amounts to the retrospective and arbitrary deprivation of property, an infringement of Section 25 of the Constitution. The Bill allows, in effect, the expropriation of local content without compensation.
Parliament is in the process of amending Section 25. Yet, it is doubtful that any of the supporters of expropriation without compensation ever intended it to apply to homegrown, South African culture and creative expression.
Expropriating land as a form of social justice is one thing; expropriating content, especially content produced by black artists, writers and creatives, is quite another. One is redress; the other exploitation.
We cannot sit idly by while our local artists, writers and creatives have their content and future livelihoods stolen from them by big global tech companies. We cannot allow the destruction of South African culture and knowledge. And we must refuse to allow our creative content to be exploited under the guise of “fair use”.
Many of our young creatives have overcome huge challenges to get where they are today. They deserve both our support, and the protection of the law. Ramaphosa has a single, vital chance to do the right thing and send the Copyright Amendment Bill back to Parliament to be reconsidered.
We need to go back to the drawing board, to consider credible research and to take into account the will of the people. In this way, all aspiring artists and creatives will have a chance to make a decent living from their craft and to showcase their art to the world.
Collen Dlamini is convenor of the Coalition for Effective Copyright in South Africa